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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: LT. COL.  K. S. R. SWAMI

DATE OF JUDGMENT: 22/09/1961

BENCH:

ACT: Forest  Land-Reclamation Whether  Collector’s  or   Forest Officer’s  order  should prevail-Extinction  of  rights-When takes  place-Bihar  Private  Forest Act, 1947  (Bihar  9  of 1948), s. 30, Proviso-Bihar Protected Forest Rules, rr. 1 to 4, 8.

HEADNOTE: The  respondent  was  the tenant of a tract  of  land  which formed  part  of  a  forest  and  continued  to  remain   in possession  thereof  after the Zermindari  interest  of  the proprietor  became vested in the State Government under  the Bihar  Land Reforms Act, 1952.  The Government notified  its intention  to  constitute  the forest  a  private  protected forest  and by a subsequent notification under s. 30 of  the Indian Forest Act prohibited the breaking up or cleaning the land  of  this  and certain other  "protected  forests"  for cultivation   whereupon   the  employees  ’of   the   Forest Department   started  interfering  with   the   agricultural operations  carried  on by the respondent.   The  respondent then  sought  the  permission  of  the  Collector  to  start reclamation  and cultivation of this area and the  Collector gave   him  permission  to  "go  ahead  with  the  work   of reclamation  and  cultivation  of  this  area."  The  forest officer  disregarded  the  Collector’s order  and  made  the respondent  stop  reclamation.   Ultimately  the  Government interfered  insisting on the withdrawal of  the  Collector’s order.  The questions which arose for decision in this  case was whether (1)     the  order passed by the Forest  officer on  the  basis  of  rule  of  the  Bihar  Protected   Forest Rules,which prohibited the    cutting  or removal  of  trees without the permission of the      Forest   Officer   should prevail over the permission granted by  the Collector  under r. 8 and (2) whether the respondent’s right to the land  had ceased under s. 19 of the Bihar Private Forests Act. Held,  that rr.  1 to 4 apply to the cutting or  removal  of trees where inspite of such cutting the forest would  remain a  forest  but those rules did not control  the  cutting  of trees  which  would be necessary for clearing the  land  for cultivation  or any other purpose which was controlled  only by  r.  8. In the present cast the permission given  by  the Collector under r. 8 was in accordance with law and  neither the  Forest Officer nor the Government had any authority  in law  to interfere with that permission for the  clearing  or cultivation of the land. The  extinction of rights under s. 19 of the Act could  take place only after the publication of the final notification 728 under  s.  30 and not by a notification  under  the  proviso

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thereof  pending  the  completion  of  enquiries  under  the provisions of the Act.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 354 of 1957. Appeal  from the judgment and decree dated October 7,  1955, of  the Patna High Court in Misc.  Judicial Case No. 422  of 1954. L.   K. Jha, D. P. Singh., R. K. Garg, M. K. Ramamurthi  and S. C. Agarwala, for the appellants. B.   K. P. Sinha and A. G. Ratnaparkhi, for respondent. 1961.   September  22.   The  Judgment  of  the  Court   was delivered by DAS  GUPTA, J.-This appeal by the State of Bihar  challenges the correctness of an order made by the High Court at  Patna in  an application by the respondent under Art. 226  of  the constitution.  The respondent was inducted as a tenant oil a tract  of land measuring 245.69 acres in village Singpur  by the  then  proprietor  in November 1945,  and  continued  to remain  in  possession after the Zemindari interest  of  the proprietor   became  vested  in  the  State  of   Bihar   in consequence  of a notification under the Bihar Land  Reforms Act (Bihar Act XXX of 1952) on the 30th December, 1952.   In 1945  this area was forest land.  On September 15,  1946,  a notification  was  published under section 14 of  the  Bihar Private   Forest  Act,  1946  declaring   the   Government’s intention  of  constituting the forest a  private  protected forest.   By  the  same notification  the  Governor  further ordered  that until the publication of a notification  under a.  30 of the Act all the rights to out, collect and  remove trees  or  any class of trees in or from  the  forest  shall cease  to  exist subject to  conditions  and  specifications specified  in  the  Second Schedule.   The  result  of  this notification was that immediately on its publication in  the Government  Gazette the respondent’s right to  cut,  collect and remove trees 729 ceased  so  long as this forest continued to  be  a  private forest.   On the 6th April, 1948, a notification  under  the proviso  to  s.  30 of the Bihar  Private  Forest  Act,  was published.  After the forest land became vested in the State on  the  30th December, 1952, there was  a  notification  on January 22, 1953, which both parties agree, was in substance under  the proviso to s. 29 of the Indian Forest Act,  1927. It  is  the  common  case  of  both  the  parties  that   in consequence  of  this notification the forests  in  Singpur Village  became  a  protected forest.  On May  29,  1953,  a further notification under section 30 of, the Indian  Forest Act  was  made prohibiting the breaking up or  clearing  the ,land  of  this and certain other  "protected  forests"  for cultivation.   As local employees of the  Forest  Department acting  under the Divisional Forest Officer,  Gaya,  started interfering  with  the agricultural  operations  carried  on behalf of the petitioner apparently on the strength of  this notification of May 29, 1953, the respondent sought the per- mission  of the Collector of Gaya to start  reclamation  and cultivation  of lands.  On April 22, 1954 the  Collector  of Gaya  gave the petitioner permission "to go ahead  with  the work  of  reclamation  and cultivation in  this  area."  The Forest  Officer however disregarded the  Collector’&  orders and  made  the petitioner to stop:  reclamation.   On  being approached  by the appellant the Collector called  upon  the Forest  Officer to furnish an explanation as to why  he  had

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flouted  deliberately the Collector’s  orders.   Ultimately, the Bihar Government sent a telegram to the Collector, Gaya, on  June  10,  1954 desiring that the order  issued  by  the Collector  on  April 22, permitting the  respondent  "to  go ahead  with the reclamation should be withdrawn pending  the decision  of the Government in the matter".   The  Collector forwarded  a  copy of this telegram to  the  respondent  for information and necessary action on June 11, 1954. 730 It does not appear that any further order  has been made  by Government in the matter.  On August 2, 1954 the  respondent made  his  application to the High Court  of  Judicature  at Patna  praying  that  an  appropriate  writ  be  issued  for cancellation  by the Government of Bihar of  the  directions given on June 10, 1954 to the Collector and for  restraining the  Government  of  Bihar  and  the  Forest  Officer   from interfering with the petitioner’s possession over this  land in village Singpur. The  petitioner’s case was that the forest having  become  a protected  forest under Chapter IV of the Indian Forest  Act the Collector was the proper and competent authority to give permission  to  clear or break up for cultivation,  land  in this forest under Rule 8 of the rules made by the Government of Bihar in exercise of the power conferred by section 32 of the  Indian  Forest Act, 1927 and that  neither  the  Forest Officer  nor  the Government of Bihar itself  could  in  law interfere  with  what he was doing on the strength  of  that permission. In  opposing the petition the State of Bihar contended  that the Collector’s order was of no avail in the face of rule  4 of  the rules made by the Government of Bihar under  section 32  which provides that "’no person shall out,  convert,  or remove from the said forest or otherwise deal in trees etc., of  the  forest" except in accordance with Rules I,  II  and III. At  the  hearing of the petition it was  further  argued  on behalf on the State that the right of the petitioner to  the land  in dispute had been extinguished under section  19  of the  Bihar  Act  IX  of  1948,  on  the  publication  of   a notification by the Government of Bihar under the proviso to section 30 of that Act.  The High Court rejected this  argu- ment, being of the opinion that extinction could take  place only  when  the  final notification  under  section  30  was published  and as this final notification was not  published section 19 had no application 731 to the case.  The High Court also held that in a case  where a  Collector grants permission under Rule 8 of the 1  Bihar Protected Forest Rules the Divisional Forest Officer had  no power  to  interfere by virtue of Rules 1,to 4 of  the  same Rules.  Accordingly the High Court allowed the petition  and made an order quashing the State Government’s order conveyed in  their  telegram of the 10th June and the  order  of  the Forest Officer dated the let May, by which this Officer  had prohibited   reclamation  of  the  disputed  land   by   the petitioner. In  this Court, Mr. Jha raised both the points on which  the petition was resisted before the High Court, viz., (1)  that the petitioner’s right to the land had ceased under s. 19 of the Bihar Private Forests Act and (2) that, the order passed by  the Forest Officer on the basis: of Rule 4 of the  Bihar Protected  Forests Rules should prevail over the  permission granted by the Collector under r. 8. Mr. Jha’s first contention on the first point was that  when a  notification is made under the proviso to section 30,  no

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further  notification under section 30 need be made at  all. In our opinion, there is no force in this contention. The  provisions  of the Bihar Private Forests Act,  1947  in respect  of private  Protected Forests  are  contained  in Chapter  II of the Act.  The scheme of these  provisions  is that  the  State Government on being satisfied  that  it  is necessary in the public interest to apply the’ provisions of the  chapter  to  any private forest,  may  constitute  such forest  a  protected. forest in the manner  laid  down;  the first  step  that  has  to  be  taken  is  the  issue  of  a notification under section 14 declaring that it is  proposed to  constitute  a  forest a  private  protected  forest  and calling for objections’ of all landlords whose interests are ’likely  to  be,  affected.  The hearing  of  objections  is provided  for in section 15, sub-section 3 of which  section further  provides that if no objection is presented or  when objection is so’ presented and 732 finally disposed of the Government may issue a  notification declaring  its  decision to constitute the  area  a  private forest  and  appointing  an officer  "to  enquire  into  and determine  the  existence, nature and extent of  any  rights other than landlord’s rights, alleged to exist in favour  of any  person in or over any land in the forest".  Section  16 provides that on the issue of such a notification under sub- s.  3 of s.15 the Forest Settlement Officer shall publish  a proclamation  fixing a period of not less than three  months from the date of such proclamation for claims to be made  by all persons as regards rights other than landlord’s  rights. Section 17 empowers the Forest Settlement Officer to enquire into  all claims preferred in response to  the  notification and also into the existence of any rights mentioned in  sub- s.3 of s. 15 and not claimed under a. 16. Section 22 of this Chapter deals with the procedures for dealing with claims of forest  contractors and grantees.  Section 23 provides  that in  the case of claim to a right in or over any  land  other than a right of way or right of pasture or a right to forest produce or water course the Forest Settlement Officer  shall pass an order admitting or rejecting the same in whole or in part  subject  to  the provisions of  sections  25  and  26. Section  27  gives a right of appeal to any person  who  has made  a  claim under section 16 or section  22  against  the order passed by the Forest Settlement Officer under as.  22, 23,  24 or 26.  Section 30 provides for the final action  to be  taken by the Government in the matter of constituting  a private  protected forest.  The main portion of the  section is in these words:-               "Where  the  following events  have  occurred,               namely,               (a)   the  period fixed under section  16  for               preferring claims has elapsed and all  claims,               if  any,  made under sections 16 and  22  have               been  disposed  of by  the  forest  settlement               officer, and               733               (b)   if  any  such claim has been  made,  the               period  limited  by section 27  for  appealing               from  the  orders passed on  such  claims  has               elapsed,  and all appeals (if  any)  presented               within  such period have been disposed  of  by               the appellate officer,               the   State   Government   shall   publish   a               notification    in   the   Official    Gazette               specifying.  definitely according to  boundary               marks erected or otherwise,. the limits of the

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             forest  which is to be constituted  a  private               protected forest, and declaring the same to be               a  private  protected forest,  from  the  date               fixed by the notification and from the date so               fixed  such  forest shall be deemed  to  be  a               private protected forest". It is followed by a proviso in the following words:-               "Provided  that, if in the case of any  forest               in  respect  of  which  a  notification  under               section  14 has issued, the  State  Government               consider  that  the inquiries,  procedure  and               appeals  referred  to  in  this  Chapter  will               occupy  such length of time as to cause  undue               delay  in the forest being declared a  private               protected  forest, such delay, in the  opinion               of  the State Government being prejudicial  to               the public interest, the State Government may,               pending the completion of the said  enquiries,               procedure and appeals, declare by a  notifica-               tion  containing the particulars specified  in               this  section,  such forest to  be  a  private               forest". It  is  abundantly  clear that the  notification  under  the proviso is not intended to amount to a final constitution of the  private  forest  as a private  protected  forest.   The notification  under the proviso is to be made only  ,pending the completion of the said enquiries procedure and appeals". Quite  clearly, these enquiries, procedure and  appeals  are not stopped the declaration under the proviso.  They have to 734 be  completed and it is only after their completion  that  a notification  ban be made by the Government under  the  main part  of  the  section. , On a reasonable  reading  of  the section  it  is therefore abundantly clear that  even  where the: Government thinks fit to make a declaration under  the proviso,  this will have effect only so long as  the  period fixed  under section 16 for preferring, claims (i)  has  not expired;,  (ii)  claims under ss.16 and 22  have  not,  been disposed  of, (iii) the periods limited by section  27  for appealing from the orders passed in respect of those  claims have  not  elapsed; and (iv) all appeals  preferred  against such orders have been disposed of. Turning now to section 19 of this Chapter we find it  laying down that "rights (other than landlord’s rights) in  respect of which no claim has been preferred under s. 16 and of  the existence of which no knowledge has been acquired by enquiry under s. 17, shall be extinguished, unless before the  noti- fication under s. 30 is published, the person claiming  them satisfies   the  Forest  Settlement  Officer  that  he   had sufficient  cause for not preferring such claim  within  the period fixed under s. 16." The  appellant’s  argument is that the  words  "notification under s. 30 is published" includes a notification made under the  proviso  to that section and that consequently  when  a notification  under the proviso to s. 30 has been  published all rights other than landlords rights, in respect of  which no claim has been preferred and of the existence of which no knowledge has been acquired by an enquiry under s. 17, shall be extinguished.  This  argument  is  in  our  opinion  wholly  unacceptable. Considered  in the background of the provisions in  the  Act for claims to be made under s. 16, for enquiry into these by the  Forest  Officer  and thereafter for  appeals  from  the decision of the Forest Officer, after the completion of  all of  which  only  ’the final  notification  constituting  the

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private forest a private protected ’forest can be 735 made, it is clear that rights "other than landlord’s rights" in respect of which no claim has been preferred under a.  16 or which have not been disclosed by enquiry under s. 17 were intended  by the legislature to be extinguished  only  after the  final notification is made.  It is to be  noticed  that three  months’ time from the date of the proclamation  under s. 16 is to be allowed for making claims.  The enquiry under s.  17 can start only after these claims have been made  and some  more  time  must  elapse  before  an  enquiry  can  be completed  into the existence of rights which have not  been claimed under s. 16.  A notification under the proviso of s. 30  can however be made at any time after  the  notification under  s.  14  has issued.  It is meaningless  to  speak  of rights in respect of which no claim has been preferred under s.16  and  of the existence of which no knowledge  has  been acquired  by an enquiry under s. 17, before the  period  for the  enquiry under s. 17 has expired.  Again, there will  be no extinction of rights. under s. 19, if the person claiming the rights, satisfies the Forest Settlement Officer that  he hid sufficient cause for not preferring the claim within the period  fixed under s. 16.  The question of thus  satisfying the  Forest Settlement Officer can clearly not arise  before the period fixed under s. 16 has expired.  All this  clearly shows  that  the extinction of rights under s. 19  can  take place only after the final notification under s. 30 has been published. It  is  necessary  to consider next  the  apparent  conflict between the powers of the Officers of the Forest  Department under rr.  1 to 4 and the powers of the Collector under r. 8 of  the Protected Forest Rules.  Under r. 1 persons who  are bona fide residents of Khasmahal lands may cut, convert  and remove  to  their homes for their own domestic  use  certain trees but the Forest Officer can in his discretion  withdraw this privilege Certain other trees as specified in the  Rule may 736 be  out  by  such  bona fide  residents  with  the  previous permission  of  the Forest Officer.  Under r. 2  the  Forest Officer  may  by an order in writing  authorise  in  certain circumstances villagers of adjacent villages also to cut and remove  trees  mentioned in r. 1. Rule 3 provides  that  the Divisional   Forest  Officer  may  grant  license   to   any inhabitant of a town or village in the vicinity of a  forest to  take trees, timber, or other produce for his own use  to any  person  whatsoever authorising him to  fell  or  remove trees for the purpose of trade on payment of fees at current rates  as  may  be sanctioned by the  Chief  Conservator  of Forests.   Rule  4 on which special reliance  is  placed  on behalf  of  the State is in these words :-"No  person  shall cut,  convert  or remove from the said forest  or  otherwise deal  with any trees, timber or other forest produce of  the said  forest............ except as provided in Rules  1,  II and  III.  Rule 8 under which the Collector gave  permission runs thus : "No land in the said forest shall be cleared  or broken  for  cultivation or any other  purpose  without  the written permission of the Collector".  There is an  apparent conflict here between the provisions of r. 4 and r. 8 ; for, while under r. 4 no cutting, conversion or removal of  trees can  be  made  except under license issued  under  r.  3  or permission granted by the Forest Officer under r. 2 or under the  provisions of r. 1, all this can be set at naught if  a written permission is granted by the Collector for  clearing or breaking up the land for cultivation or any other purpose

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necessarily involving the cutting and removal of trees. On  behalf of the appellant-State Mr’ Jha argued that  r.  8 has  no  operation so long as trees are standing and  it  is only if trees have been cut or removed under the  provisions of  rr.  1,  2  and 3 and only stumps  of  those  trees  are standing that the Collector can give permission for clearing the  forest land or breaking it up for cultivation.  We  are unable to persuade ourselves- that in making 737 these  rules  the Government intended to give  such  limited authority only to the Collector. It is obvious that while Rules 1, 2, 3 and 4 were made under clauses  a, b, c and d of section 32, Rule 8 has  been  made under  clause  g  of section 32 which is  for  the  definite matter of "clearing and breaking up of land for  cultivation or any other purpose" in a protected forest.  The reasonable way  of reading Rules 1 to 4 and Rule 8 appears to us to  be that  Rules 1 to 4 apply to the cutting or removal of  trees where in spite of such cutting the forest would continue  to be  a  forest; but cutting of trees which is  necessary  for clearing  the land for cultivation or any other  purpose  is not  controlled  by Rules 1, 2, 3 or 4 but only by  Rule  8. That  seems  to  us  to  be  the  only  way  of   harmonious construction of Rules 4 and 8 and that must, in our opinion, have been intended by the rule making authority. In  the present case therefore when the tenant on  the  land asked  for permission to clear the land for cultivation  and it was this clearing which involved the cutting and  removal of  trees Rules 1 to 4 had no application and Rule  8  under which the Collector acted applied.  It may be mentioned here that  though Rule 8 is in the negative form, it is what  has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for  cultivation or  any  other purpose with the written  permission  of  the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose  shall  take  place.  The permission  given  in  the present  case by the Collector was therefore  in  accordance with  law and neither the Forest Officer nor the  Government had any authority in law to interfere with that permission. The   last  argument  advanced  by  Mr.  Jha  is  that   the prohibition by the State Government of clearing or  breaking up for cultivation or for any other purpose of any land in a protected  forest  by the notification dated May  29,  1953, under s. 30 of 738 the   India  Forest  Act,  1927,  must  prevail   over   the permission,  given  by the Collector.  It is to  be  noticed that whereas section 30 empowers the State Government  inter alia   to  prohibit  such  breaking  up  or   clearing   for cultivation  of any land in a protected forest,  section  32 empowers  the  State Government to make  rules  to  regulate inter   alia  "the  clearing  and  breaking  of   land   for cultivation  or  any other purpose" in a  protected  forest. Even  if  the  legislature had said  nothing  else  in  this matter,  it  would  have been plausible to  argue  that  the prohibition  under the notification would yield  before  any permission given under the Rules under a.    32. All  doubts are however set at rest by section  34  of  the  Act   which runs thus :-               "Nothing  in this Chapter shall be  deemed  to               prohibit  any act done with the permission  in               writing   of   the  Forest  Officer,   or   in               accordance  with  rules made under s.  32,  or               except  as  regards any portion  of  a  forest

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             closed  under s. 30, or as regards any  rights               the exercise of which has been suspended under               s.  33, in the exercise of any right  recorded               under section 29". It follows clearly and necessarily from section 34 that  the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in  accordance with Rule 8 of the Rules made under section 32. All the contentions raised in the appeal therefore fail.  We are  of  opinion that there is no legal  authority  for  the State   Government  to  interfere  with  the   clearing   or cultivation  of land by the respondent which is proposed  to be done in accordance with the written permission granted by the  Collector under Rule 8 of the Protected  Forest  Rules, 1953. It  appears  that  through some  oversight  the  High  Court ordered the issue of a writ of certiorari, though a writ  in the nature of mandamus was                             739 prayed  for.  It is clear that the appropriate writ  in  the circumstances of the present case is a writ in the nature of mandamus  and we modify the order made by the High Court  to this extent that a writ in the nature of mandamus be  issued directing  the appellant-Government to cancel its  order  on the  Collector  made on June 10, 1954  and  restraining  the Government  and the Forest Officer from inter  fearing  with the  petitioner’s  possession over 245.69 acres of  land  in village Singpur which he possesses as tenant. The appeal is dismissed with costs. Appeal dismissed.